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ASSURANCE AGREEMENT
This Agreement is made on
, 2020, by and between
MARICOPA COUNTY, a political subdivision of the State of Arizona, by its Board of
Supervisors (hereinafter "County");
And
Mattamy Arizona LLC, an Arizona limited liability company, with an address of 9200 E.
Pima Center Parkway, Suite 160, Scottsdale, AZ 85258 (hereinafter "Mattamy").
RECITALS
Whereas, Mattamy is the owner of certain real property fully described in Exhibit A
attached hereto (hereinafter "Property"); and
Whereas, Mattamy has applied to the County pursuant to A.R.S. §11-821 et seq. to
subdivide the Property for single family residential development; and
Whereas, A.R.S. §11-821(C) provides: "The regulations shall require the posting of
performance bonds, assurances or such other security as may be appropriate and necessary to
ensure the installation of required street, sewer, electric and water utilities, drainage, flood control
and improvements meeting established minimum standards of design and construction;" and
Whereas, A.R.S. §11-822(A) provides: "No plat of a subdivision of land within the area of
jurisdiction of the County shall be accepted for recording or recorded until it has been approved
by the Board. The approval of the Board shall be endorsed in writing on the plat and shall also
include specific identification and approval of the assurances;" and
Whereas, development of the Property will require certain half-street improvements for
portions of the northern half of Camelback Rd., of which the County, the City of Glendale
("Glendale"), and the City of Goodyear ("Goodyear") are finalizing an Intergovernmental
Agreement that contemplates the design, permitting, construction, operation, maintenance and
traffic enforcement of the improvements to the north half of Camelback Road. Such half-street
improvements require Goodyear's review and approval of offsite improvement plans; and
Whereas, Mattamy has requested review and plat approval during the pendency of
Goodyear's review of offsite improvements plans for Camelback Rd.; and
Whereas, Mattamy has requested that, to satisfy the statutory requirement for providing an
assurance to ensure the installation of required road way dedications and improvements, that the
County enter into an agreement with Mattamy that no building permits for the construction of
homes for sale to third parties shall be issued in connection with the Property unless and until such
time that all offsite improvements for Camelback Rd. have been installed, or an acceptable
substitute assurance provided to the City of Goodyear (i.e. performance bond), pursuant to plans
and specifications approved by Goodyear that meet the minimum standards of design and
construction established by Goodyear ("Building Permit Hold"); and
Whereas, any such agreement entered into between the parties shall be deemed to be a
"Building Permit Hold;" and
Whereas, the County is agreeable to entering into such a Building Permit Hold to serve as
the statutorily required assurance of performance provided all of the terms of such Agreement are
satisfied.
AGREEMENT
NOW THEREFORE, in consideration of the mutual premises contained herein and other
good and valuable consideration, the parties agree as follows:
1.
The above recitals are incorporated herein as if fully set forth hereinafter.
2.
No building permit shall be issued to allow construction on or in connection with the
Property until such time that Goodyear approves the final offsite improvement plans for
Camelback Rd. and Mattamy provides assurances (i.e. performance bond) acceptable to Goodyear
for such improvements, except:
a.
Building permits for the installation and completion of all required infrastructure
for the project pursuant to plans approved by any and all applicable agencies.
b.
Building permits issued by the County for model homes on lots 22 through 26,
inclusive, with parking only on lots 1 through 5, inclusive. No occupancy of any model
home as a single family residence shall be allowed unless and until the Building Permit
Hold created by this Agreement terminates. Such model homes may be occupied by
Mattamy for sales and related operations and certificates of occupancy for such limited
uses shall be issued to the extent required to allow such use and operations.
3.
No building permit, except for the model homes as contemplated in Paragraph 2 of this
Agreement, shall be issued until such time that construction for the half-street offsite
improvements for Camelback Rd. has been substantially complete pursuant to plans and
specifications approved by Goodyear that meet the minimum standards of design and construction
established by Goodyear. "Substantially complete" for purposes of this Agreement only shall mean
after pavement is laid for Camelback Rd. Proof of substantial completion shall be presented to the
County prior to the issuance of any building permit other than as set forth in paragraph 2 hereof.
4.
No building permit of any kind shall be issued for items identified in Paragraph 2 of this
Agreement until this Agreement has been recorded in the office of the Maricopa County Recorder.
5.
In the event the County Board of Supervisors does not approve the subdivision plat and/or
replat for the Property, this Agreement shall be deemed properly terminated and of no force or
effect.
-2-
6.
Mattamy shall maintain a valid, active building permit for construction of any and all
required subdivision infrastructure. Mattamy shall be responsible for extending or renewing any
such permit as the case may be prior to expiration.
7.
This Agreement and the Building Permit Hold shall remain in place until such time as all
improvement plans required by the subdivision approval for the Property have been substantially
completed by Mattamy to applicable County or other appropriate standards of other approving
authorities, and approved by Goodyear, or required assurance(s) (i.e. performance bond) have been
provided to Goodyear for offsite improvements along Camelback Rd. Upon substantial
completion of the infrastructure that this Agreement assures, or other written agreement of
termination of this Agreement, the County shall execute an appropriate document presented to it
by Mattamy for recording to provide notice that this Agreement has terminated.
8.
This Building Permit Hold does not and shall not be interpreted to include required
assurances for any and all improvements required to the portions of Perryville Road, which are to
be dedicated to the County that are adjacent to the Property. Said improvements shall be assured
by proper financial assurances pursuant to guidelines provided by Maricopa County Department
of Transportation following the plat of offsite improvements and roadway dedications.
9.
This Agreement may be cancelled by the County pursuant to the terms of A.R.S. § 38-511.
10.
All notices, and communications to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally (in which case the date of delivery
would the actual date), if mailed first-class, postage prepaid, registered or certified mail (in which
case the date of delivery would be three (3) days from the date of mailing), or if sent by telegram,
telex, facsimile, telecommunication or other similar fon -n of communication (in which case the
date of delivery would be the date of receipt confirmation), as follows, or as otherwise provided
by notice to the other party:
If to County:
Maricopa County Planning and Development Department
501 N. 44th Street
Phoenix, AZ 85008
Attention: Director
If to Mattamy:
9200 E. Pima Center Parkway
Suite 160
Scottsdale, AZ 85258
Attn: Chris Bramwell
With Copy to:
Tiffany & Bosco, PA
2525 E. Camelback Rd., 7 th Floor
Phoenix, AZ 85016
Attn: Ashley Z. Marsh
11.
This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the
parties to this Agreement and their respective successors and assigns.
12.
This Agreement, including all Exhibits constitute the entire agreement and understanding
between the parties relating to the provision of assurances required by statute and supersedes all
prior representations, communications and arrangements, whether oral, written or inferred,
between the parties relating to that subject matter. This Agreement shall not be amended or
modified except by a writing duly executed by Mattamy and the County. The waiver of any breach
of any term or condition of this Agreement shall not be deemed to constitute the waiver of any
other breach of the same or any other term or condition.
13.
Any dispute, controversy, claim or cause of action arising out of or related to this
Agreement shall be governed by Arizona law. The venue for any such dispute shall be Maricopa
County, Arizona and each Party waives the right to object to venue in Maricopa County for any
reason. The prevailing Party shall be entitled to recover any of its attorney's fees or other costs
from the non-prevailing Party incurred in any such dispute, controversy, claim, or cause for action,
whether the same is resolved through arbitration, litigation in court, or otherwise.
14.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
15.
The Parties have been represented by counsel in the negotiation and drafting of this
Agreement and this Agreement shall be construed according to the fair meaning of its language.
16.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Dated as of the day and year first above written.
(Signatures appear on following page)
By:
Name:
Title:
r?tt5; 4.e
MATTAMY:
Mattamy Arizona ,LC,
COUNTY:
MARICOPA COUNTY BOARD OF SUPERVISORS
By:
Name:
Title:
ATTEST:
Clerk of the Board of Supervisors
Approved as to fo,thi and content:
Date:
Date:
EXHIBIT A
(Legal Description of the Mattamy Property)
[See attached]
AZURE CANYON — PARCEL 1 & 2
GROSS AREA LEGAL DESCRIPTION
A portion of land being situated within the Southwest Quarter of Section 15, Township 2
North, Range 2 West of the Gila and Salt River Meridian, Maricopa County, Arizona,
being more particularly described as follows:
BEGINNING at a found 3 inch Maricopa County Department of Transportation brass
cap in hand hole accepted as the Southwest corner of said Section 15, from which a
found 3 inch Maricopa County Department of Transportation brass cap in hand hole
accepted as the South quarter corner thereof bears South 89°50'02" East, 2633.15 feet;
Thence North 00 024'23" East, 1318.65 feet along the west line of the Southwest quarter
of said Section 15;
Thence leaving said west line, South 89°51'25" East, 2631.80 feet along the southerly
line and the westerly extension thereof, of the Final Plat of Savannah, as recorded in
Book 754, Page 39, Maricopa County Records, Arizona, to the Southeast corner of said
Final Plat;
Thence South 00°20'52" West, 1319.70 feet along the east line of said Southwest
quarter of said Section 15 to the South quarter corner thereof;
Thence North 89°50'02" West, 2633.15 feet along the south line of the Southwest
quarter of said Section 15 to the POINT OF BEGINNING.
EXCEPT therefrom that portion of land more particularly described as follows:
COMMENCING at a found 3 inch Maricopa County Department of Transportation brass
cap in hand hole accepted as the Southwest corner of said Section 15, from which a
found 3 inch Maricopa County Department of Transportation brass cap in hand hole
accepted as the South quarter corner thereof bears South 89°50'02" East, 2633.15 feet;
Thence North 00°24'23" East, 514.00 feet along the west line of the Southwest quarter
of said Section 15;
Thence leaving said west line, South 89°50'02" East, 65.00 feet to the POINT OF
BEGINNING;
Thence South 89°50'02" East, 969.51 feet;
Thence South 00 00949" West, 449.00 feet;
Thence North 89°50'02" West, 946.30 feet along a line that is parallel with and 65.00
north of the south line of said Southwest quarter, to the beginning of a tangent curve,
concave northeasterly, having a radius of 25.00 feet;
U:11200 \1228 \SURVEYNDOCS \LEGAL11228-P1 &2-GROSS BOUNDARY.docx
Page 1 of 2
Thence northwesterly along said curve, through a central angle of 90 0 14 126 11 , an arc
length of 39.37 feet to a tangent line;
Thence North 00°24'23" East, 423.90 feet along a line that is parallel with and 65.00
feet east of the west line of said Southwest quarter to the POINT OF BEGINNING;
The above described parcel contains a computed area of 3,037,071 sq. ft. (69.7216
acres) more or less and being subject to any easements, restrictions, rights-of-way of
record or otherwise.
The description shown hereon is not to be used to violate any subdivision regulation of
the state, county and/or municipality or any land division restrictions.
Prepared by: HILGARTVVILSON, LLC
2141 E. Highland Avenue, Suite 250
Phoenix, AZ 85016
Project No. 1228
Date: October 2019
U:1120011228\SURVEYNDOCSIEGAL\1228-P1&2-GROSS BOUNDARY.docx
Page 2 of 2
MATTAMY ARIZONA, LLC
ACTION OF THE SOLE MEMBER AND MANAGER
The undersigned, Mattamy Arizona Corporation, a Delaware corporation, constituting the
sole member and manager ("Manager") of Mattamy Arizona, LLC, an Arizona limited liability
company (the "Company"), in accordance with the Company's Amended and Restated Limited
Liability Company Agreement dated June 1, 2015 (the "LLC Agreement"), does hereby take the
actions set forth below:
WHEREAS, Section 5.3 of the LLC Agreement authorizes the Manager to appoint
officers to act on behalf of the Company and to remove officers of the Company at any time,
with or without cause; and
WHEREAS, Kevin Rust was previously appointed to serve as an Assistant Vice
President of the Company; and
WHEREAS, the Manager desires to remove Kevin Rust as an Assistant Vice President of
the Company and appoint him as a Vice President of the Company;
NOW, THERFORE, BE IT RESOLVED, that Kevin Rust is hereby removed as an
Assistant Vice President of the Company; and
FURTHER RESOLVED, that Kevin Rust is hereby appointed as a Vice President of the
Company; and
FURTHER RESOLVED that, in connection with the day-to-day business operations of
the Company, Kevin Rust is authorized in the name and on behalf of the Company to take any
and all lawful actions in connection with the business of the Company, and to execute and
deliver any and all agreements, contracts or other documents to carry out the business of the
Company.
WITNESS the execution hereof to be effective as of September 1, 2019, regardless of the
actual date of signing. This instrument may be signed and delivered by facsimile or other
functionally equivalent means.
SOLE MEMBER AND MANAGER:
MATTAMY ARIZONA CORPORATION,
a Delaware corporation
B : %at.)
elly &'14
Peter G. SI
President
MARICOPA COUNTY
RESOLUTION NO.
C- ___________
A RESOLUTION OF THE BOARD OF SUPERVISORS OF MARICOPA COUNTY, PHOENIX,
ARIZONA (THE “COUNTY”) AUTHORIZING EXECUTION ON BEHALF OF THE COUNTY, AN
ASSURANCE AGREEMENT AMONG THE COUNTY; AND MATTAMY ARIZONA, LLC.
(HEREAFTER, THE “OWNER”) REGARDING IMPLEMENTATION OF THE DEVELOPMENT
KNOWN AS THE INFRASTRUCTURE PLAT OF AZURE CANYON SUBDIVISION
WHEREAS, Maricopa County is a growing county with respects to population, and
expects population growth to continue in the foreseeable future, and
WHEREAS, a sizable portion of this population growth will occur in unincorporated areas
as a result of large master-planned communities that will include a significant number of residents
and various types of land uses; and
WHEREAS, the Board of Supervisors recognizes that it must exercise its authority to
accommodate growth in an efficient manner that protects County residents and taxpayers from
undue fiscal burdens; and
WHEREAS, pursuant to Arizona Revised Statues §11-821(C) the posting of an assurance
satisfactory to the County, ensuring the completion of necessary infrastructure, is required as a
pre-condition to the granting of an approval to subdivide property; and
WHEREAS, Owner owns certain real property in unincorporated Maricopa County
comprising a total of approximately 140 acres (the “Property”); and
WHEREAS, Owner represents and warrants that it is the fee title owner of the Property
and has an interest in the Property as described in Arizona Revised Statutes §11-1101 B; and
WHEREAS, County wishes to enter into an assurance agreement in form and substance
acceptable to the County with Owner (the “Assurance Agreement”) for the subdivision known as
Infrastructure Plat of Azure Canyon in accordance with ARS §11-821 to help ensure timely and
efficient development of infrastructure and services for future residents within the Property, and
to help minimize fiscal impacts to County residents and taxpayers;
°24., 7-e
ATTEST:
RM:
WHEREAS, ARS §11-821 provides that the Board of Supervisors may regulate the
subdivision of lands within its corporate limits by requiring the posting of performance bonds or
other forms of assurances, including assurance agreements, necessary to ensure the installation
of required street, sewer, electric and water utilities; and drainage and flood control improvements
meeting minimum standards of design and construction; and
WHEREAS, the Board of Supervisors has agreed to accept from Owner in order to meet
such requirements an assurance in the form of the "Assurance Agreement".
NOW, THEREFORE, BE IT RESOLVED, the Board of Supervisors of Maricopa County
authorizes execution of the Assurance Agreement on behalf of the County.
EXECUTED this
day of , 2020, by Maricopa County Board of Supervisors,
Phoenix, Arizona.
Chairman,
Board of Supervisors
rney for the County
Clerk of the Board